RESTORATIVE JUSTICE: NEED OF TWENTY FIRST CENTURY

“Restorative Justice puts a human face on the handling of crime and violence. Rather than being
purely punitive in approach, restorative justice involves the entire community.”

Carol Palmer

Restorative Justice is a theory of justice that emphasizes restoring the injury caused by criminal
behavior. The growing eminence of restorative justice interference necessitates a
reconceptualization of criminal justice in terms of a novel prototype. The most credible
contender for this is an empowerment paradigm of justice. However, for achieving an
overarching theory of criminal justice in these terms needs to be complemented by more fine-
grained theoretical explanations of how and why conservative and alternative criminal justice
interventions work the way they do. Restorative Justice payback the community; it reassures the
victim and helps the lawbreaker realize his fault and improve himself. The chief objective of this
is to identify that crime endangers community and this system aim to repair this by involving
everyone in the remedial process of the crime. Another purpose of Restorative Justice is to
regain the trust of the community to the justice system. Since victims have a higher satisfaction
rate using this process, community reacts positively to this as community can also be viewed as a
secondary victim in the offense. Peace and order is disrupted because of the offense and the
offender is held liable not only to the direct victim but also to the community.

This research paper first provides a definition of restorative justice and

discusses the differences and similarities between restorative and other models of justice. It then
describes core value–based principles that should guide restorative intervention and policy
development and discusses the varieties of restorative practice. In addition, research is
summarized that generally demonstrates the effectiveness and efficiency of restorative justice.
Following this is a discussion of how these doctrines relate to several criminological and social
science theories that may aid in explaining how and why restorative practice “works” when it
does.

The researcher will also walk around the practicalities of applying the
framework. An assessment of the scope of restorative justice practices will be undertaken with a
view to entertaining the possibility for restorative justice in different areas of law. In the course,
we will focus on the potential problems and restrictions in applying this model of justice. Finally,
we will look at the relations with and amalgamation of restorative justice practices with current
legal institutions. How can restorative justice be done and who are the suitable actors and
agents of restorative justice practices?
 INTRODUCTION
Restorative justice is a new association in the fields of victimology and criminology.
Acknowledging that offense causes damage to citizens and communities, it insists that
impartiality repair those injuries and that the parties be allowed to participate in that process.
Restorative justice programs, therefore, allow the victim, the offender and pretentious members
of the group of people to be directly involved in responding to the crime. They become central to
the criminal justice process, with lawmaking and legal professionals serving as facilitators of a
system that aims at offender accountability, reparation to the victim and full participation by the
victim, offender and community. The restorative process of involving all parties – often in face-
to-face meetings – is a powerful way of addressing not only the substance and physical injuries
caused by crime, but the societal, psychological and relational injuries as well. When a party is
not able, or does not want, to participate in such a meeting, other approaches can be taken to
attain the uplifting outcome of repairing the harm. In addressing offender accountability these
approaches can comprise restitution, community service and extra reparative sentences. In
addressing victim and offender reintegration they can include material, emotional and spiritual
support and assistance.

A definition of restorative justice that emphasizes the significance of both restorative processes
and outcomes is the following: ‘Restorative justice is a theory of justice that emphasize
repairing the harm caused or revealed by criminal behavior. It is best accomplished
through cooperative processes that include all stakeholders’. Restorative justice is different
from contemporary criminal justice in several ways. 1First, it views unlawful acts more at length
rather than defining crime as simply lawbreaking, it recognizes that offenders harm victims,
communities and even themselves. Second, it involves more parties in responding to offense
rather than giving key roles only to government and the offender, it includes victims and
communities as well. in conclusion, it measures success differently -- rather than measuring how
much punishment is inflicted, it measures how much harm is repaired or prevented.

One of the meaning of restorative justice formulate by Marshall in 1999 is: 'Restorative justice
is a process whereby parties with a stake in a specific offence collectively resolve how to deal
with the aftermath of the offence and its implications for the future'2. This definition
encompasses:

• Indirect mediation (also sometimes called shuttle mediation) - where information is passed by
one or more mediators between the offender and victim, and possibly also to other relevant

1
CENTRE FOR JUSTICE & RECONCILIATION AT PRISON FELLOWSHIP INTERNATIONAL MAY 2005
accessed at 13thJanuary,2017
2
clp.oxfordjournals.org/content/54/1/347.full.pdf accessed at 13thJanuary,2017
parties (such as probation officers or relatives), but there is no face-to-face meeting between
offender and victim3 .

• Direct mediation - where the offender and victim meet face-to-face, with one or more
mediators or facilitators also present .

• Conferencing - where offender and victim meet face-to-face, with one or more mediators or
facilitators, and with one or more supporters of the victim and the offenders also present (family,
people affected by the offence, people who are important to the offender or victim)4.

HISTORICAL OVERVIEW

Examining the history of the idea of restorative justice will offer a backdrop for the conceptual
framework we develop. A review of restorative justice also helps us to understand what factors
influenced the move away from restorative justice in favour of other conceptions of justice and
why we might want to move back towards this model in our current social context. Further, the
ways and means of past restorative practices may hold some instruction for the development of
future models5. While we want to attend to the history of restorative conceptions of justice and
their associated practices, we do not make any claims to offer the kind of full and comprehensive
historical examination the subject requires and deserves. Rather, we will content ourselves with
an “overview” of historical sources and developments of restorative justice ideas and practices
drawn primarily from existing research.

Justice in History

While Albert Eglash is generally credited with coining the term “restorative justice” in his 1977
article “Beyond Restitution: Creative Restitution,” the conception of justice to which he referred
was not new. Restorative justice is not a “new wave” movement on the fringe of legal practice.
Such conceptions of justice have been more or less prominent through most of history6.

3
https://www.shef.ac.uk/polopoly_fs/1.783!/file/RestorativeJustice2ndReport.pdf acccessed at 13th January,2017
4
www.crim.cam.ac.uk/people/academic_research/heather.../rj_strang_review.pdf accessed at 13th January,2017
5

https://webcache.googleusercontent.com/search?q=cache:nOOBkhd_BK4J:https://dalspace.library.dal.ca/bitstream/
handle/10222/10287/Howse_Llewellyn%2520Research%2520Restorative%2520Justice%2520Framework%2520E
N.pdf%3Fsequence%3D1+&cd=1&hl=en&ct=clnk&gl=in accessed at 14th January,2017
6
www.forensic.to/webhome/drgsbajpai/towards%20restorative%20justice.pdf accessed at 14th January,2017
Restorative conceptions of justice claim their roots in both Western and non-Western traditions.
Thus, a move towards a restorative model of justice is perhaps best understood as a return to the
roots of justice, and not as some new-age “cure-all” for an ailing system. Nevertheless, many
historical accounts of justice and the administration of justice have served to obscure these
restorative roots. Bianchi suggests that scholars, particularly those from the West, are so
attached to the punitive model, which forms the backbone of our current justice system, they are
unable to contemplate the success of other models in other times and places. This picture of
history serves advocates of our current retributive system well. Retribution and state control
come to be seen as necessary counters to the inevitable alternative of private vengeance and
blood feuds. A closer look at the history of justice reveals, however, that other models have
predominated throughout most of western history. The period before state centered or so-called
public justice is often referred to as a time of private justice. This term, however, may be the
source of some misunderstanding. Private justice conjures images of revenge, a private/personal
evening of scores, of unregulated, unrestrained, generally violent, response to wrongdoing. This
is not a balanced portrayal of the operation of justice before state involvement. Instead “[t]he
administration of justice was primarily a mediating and negotiating process rather than a process
of applying rules and imposing decisions.”12 Zehr has suggested “community justice” as a more
appropriate descriptor for this early period as disputes were connected to and resolved by the
community. Community justice “…recognized that harm had been done to people, that the
people involved had to be central to a resolution, and that reparation of harm was critical.
Community justice placed a high premium on maintaining relationships, on reconciliation.”13
This is not to suggest that no other responses to conflict existed during this time. Although,
retribution and formal judicial resolution were both exercised, these were mechanisms of last
resort.16 They were options only when community justice failed, where negotiation was not
forthcoming or possible. Resort to retribution or forced resolution was met with regret as an
unfortunate necessity in exceptional cases, not the norm as we have come to believe. Zehr
maintains that while retribution existed it was “…a means as much as an end in itself.”Moreover,
he explains “…the meaning and function of retribution often reflected a compensatory vision.
The system rested first on the necessity of compensating victims and repairing relationships.”17
 THEORY IN PRACTICE

In this section we will explore restorative justice in practice. We will seek an answer to the
question: What are the constitutive elements of restorative justice practice? What, in other
words, are the necessary features a process must have in order to be restorative? The first
question to be addressed is: who ought to be involved in a restorative process? As argued in the
section on restorative justice theory, restorative justice is concerned with the outcome of
wrongdoing or conflict or with their implications for the future. In fact, under a restorative
conception of justice, wrongs/conflicts demand attention precisely because they cause harm to
relationships. The focus of restorative justice practices is to address and repair this harm. An
important step in any restorative justice process then is to explore the exact nature and extent of
the harm experienced in each situation7.78 This requires setting aside the common presumption
that “victims” are the only ones harmed by wrongdoing. We must understand that communities
and even wrongdoers themselves are in some sense harmed by wrongdoing.

Victims/Sufferers of Wrong

The language of victimization is common parlance in contemporary Western culture. With the
aid of social science and social psychology it seems everyone can find someone or something to
blame for their actions and station in life. In particular, theories of social determination have
lead to a situation where everyone seems able to claim victim status. This is not intended to
disparage these theories, it is simply to point out the difficulty one faces in attempting to identify
and address the needs of victims in a restorative process. This difficulty is compounded given
that, from the restorative justice perspective, the offender and the community are also understood
to experience harm. Are they then victims as well? The problem is: how is it possible to talk of
victims of wrongdoing or conflict in any meaningful way if everyone qualifies as a victim? The
restorative perspective makes it clear that not only the victim but both the wrongdoer and the
community are injured by 47wrongdoing/conflict. This might lead some to conclude that each
of these parties is “victim,” to identify harm/injury with victim status8. This conclusion,

7
Van Ness and Strong make this point with respect to a restorative justice approach to crime. “Crime is not simply
lawbreaking, it is also injury to others; it is not simply the manifestation of an underlying injury, it is also the
creation of new injuries. … As we will see, these injuries exist on several levels and are experienced by victims,
communities and even offenders.” Strong at 4.
8
The school of thought Victimology offers a different perspective. Victimology was so named to distinguish it from
Criminology and its focus on criminals. Victimology looks at the ways in which the victim was involved in and
responsible for crime. In his 1968 work Stephen Schafer argued that “[i]n a sense, the victim shapes and molds the
criminal and his crime.” See: Victimology: The Victim and His Criminal (Reston, Va.: Reston Publishing Company,
1968) at 34. Daniel Van Ness explains that victimologists separated victims into different categories according to
their level of responsibility for the crime. Three basic categories developed: the unrelated victim, having no
responsibility for the crime; the provocative victim, whose actions provoke the offender; and the precipitative
victim who does not act to provoke the criminal but whose behaviour entices the offender. Daniel Van Ness Crime
and its Victims (Illinois: Intervarsity Press, 1986) at 29 (Hereinafter: Van Ness 2) . Also see generally: Stephen
however, ignores the important issue of the source and relative position in relation to the
harm/injury. It is this distinction that causes the instinctive reaction against viewing the
wrongdoer as victim. While it is true that the wrongdoer does in a certain sense experience harm
and injury, this alone does not render the wrongdoer a victim or suffer of wrongdoing in the
same sense. With respect to victims Zehr asks the following questions among others in order to
evaluate the restoring potential of a process9.

Do victims experience justice?

• Are there sufficient opportunities for them to tell their truth to relevant listeners?

• Are they receiving needed compensation or restitution?

• Is the injustice adequately acknowledged10?

• Do they have a voice in the process11?

Wrongdoers Before we can go on to discuss restorative processes in general there are a few
issues with regard to wrongdoers that warrant attention. First, and perhaps most contentiously, a
restorative justice perspective requires an acknowledgement that wrongdoers experience harm as
a result of wrongdoing. As explained in the section on restorative justice theory, restorative
justice recognizes that wrongdoing and conflict harm relationships, thus bringing injury to all
parties to the relationship – the victim, wrongdoer and the community. In our discussion of
victims above we noted why such acknowledgement has often been met with hostility. People
do not want to admit that the perpetrator experiences harm as a result of her actions for fear of
turning the perpetrator into a victim and thereby offering an excuse for her behavior. The
concern here is that recognizing the injuries a wrongdoer might suffer allows them to focus on
these injuries and avoid taking responsibility for their actions. However, acknowledging the
harm wrongdoers experience is actually a crucial step towards their taking responsibility and
being accountable for their actions. It prevents wrongdoers from focusing on the fact of their
injuries and hiding from facing the ramifications of their actions. As we mentioned earlier in
discussing the current retributive system, bringing harm to bear on wrongdoers by failing to

Schafer “The Beginning of Victimology” Burt Galaway and Joe Hudson eds., Perspectives on Crime Victims
(Toronto: The C.V. Mosby Company, 1981) 15 (Hereinafter: Crime Victims); B. Mendelsohn “The origin of the
doctrine of victimology” Excerpta Criminologica 1963, 3(3); H. von Hentig The Criminal and His Victim: Studies in
the Sociology of Crime (New Haven Conn: Yale University Press, 1948). We clearly do not want to suggest that the
victim is “responsible” for the harm she experiences. In fact, we identify this as the distinguishing feature of
victims as opposed to wrongdoers. However, victimology does offer an important caution against viewing the
relationship between victim and offender too simplistically. In many instances (particularly where the victim and
offender are known to one another before the wrongdoing/conflict) there are factors on both sides leading up to
the specific harm-causing event at issue.
9
https://en.wikipedia.org/wiki/Restorative_justice accessed at 17th january,2017
10
www.cscsb.org/restorative_justice/restorative_justice_yardstick.html
11
Van Ness 2 at 28. Van Ness also suggests that this victim blaming mentality may be behind the early trends in
victimology, seeking to ascribe responsibility to the victim for her part in the crime. Zehr 2 at 230.
recognize the harm they experience allows wrongdoers to avoid dealing with the harm they have
caused others or, worse, provides a way to rationalize or justify the harm they have done to
others. Recognizing the injuries to wrongdoers, however, has the opposite effect. It gives them
space to deal with these injuries and opens the way for feelings of empathy towards the harm
others experience instead of resentment that the injuries of others are addressed while their own
are ignored12. Acknowledging the wrongdoers’ experience of harm allows the wrongdoer to deal
with those feelings and to understand the experience. Wrongdoers’ then have some foundation
out of which to understand the experience of their victims13. They are able to know how others
feel because of how they felt .

Community

In order to discuss the role of the community in restorative justice we need to be clear about
what we mean by community14.85 Van Ness and Strong point out three main uses of this term
that are relevant for our purposes15.86 A community might be based on geography, interest, or it
might be used to refer to society as a whole. Each of these types of communities can be harmed
in different ways and to different degrees by conflict and wrongdoing. Thus, it is possible for
each to participate in the process of restoration in different ways16. They might each play
different roles according to what is required in the specific context at issue. For example,
immediate interest communities might offer support to either victim or the wrongdoer in a
restorative process. We are thinking particularly of those individuals close to either party by
means of familial relationship or generally as a care giving community. Or, an interest
community could serve in place of the victim if the victim is not able or willing to participate.8

12
www.drgeorgesimon.com/demeaning-as-a-lifestyle-the-sadistic-aggressive/

13
https://plato.stanford.edu/entries/criminal-law/
14
We must acknowledge the difficulty of defining notion of “the community” central to restorative justice. What is
clear is that this idea must be contextualized to each particular challenge of resotration. The relevent community
for a particular restorative justice process will be one comprised of those with a stake in the situation. One of the
difficulties, of course, is that these communities will not always be identifiable before the process itself. This does
not pose, however an insurmountable obstacle to restorative justice. In fact, it may highlight what is an advantage
of such processes, namely that in bring together those with a stake in particular situation the process is able to
generate and strengthen community. The case of South Africa provides an illustration of the complexities of
identifing the relevent community (communities) for the purposes of a restorative process. The Truth and
Reconciliation Commission process in South Africa encompassed different communities and the relationship
between them. For example, the immediate support communities of both victims and perpetrators were involved
in the process (families and friends), the wider racial and ethnic communities drawn along the historical apartheid
divides and the process itself was a central element in the building of a general South African commuonity
(society).
15
The Truth and Reconciliation Commission process in South Africa encompassed different communities and the
relationship between them. For example, the immediate support communities of both victims and perpetrators
were involved in the process (families and friends .
16
www.un.org/.../Reconciliation-After-Violent-Conflict-A-Handbook-Full-English-PDF
 THE LIMITS OF RESTORATIVE JUSTICE: Promise, Possibility and
Problems

In this section we turn to consider the scope of restorative justice. The language of restorative
justice is common parlance with respect to the criminal law context17. There has been much less
attention however to the possibilities of restorative justice in other areas of law. We will then
offer an examination of where restorative justice process might be possible and appropriate, for
example, in the areas of civil, family, regulatory, labour and international law. Given that the
overall ambition of this project is to provide a conceptual framework, which might serve as a
foundation for future application of this model in various contexts, this examination will be of a
limited nature. Our hope is to illuminate the possibilities for further study and application and to
offer some direction for such explorations. This section will also address some of the problems
advocates of restorative justice might face in their attempts to employ this model. For example,
we will consider how to deal with cases in which one or both of the parties is unwilling or unable
to participate in the process. In particular, we will address the issues raised when a perpetrator is
unable to participate in a restorative process owing to insanity or mental incapacity. This will
include attention to how issues of social protection, raised for example in the case of so-called
“dangerous offenders,” ought to be addressed18. Such an investigation will reveal the limits of
restorative justice as it must be balanced with other social values. Finally we will consider the
challenge posed by cross-cultural situations where different communities with divergent ideas of
what is required for restoration are involved. Scope of Restorative Justice That the development
of restorative justice ideas has for the most part taken place with respect to the criminal law
context is by now obvious. We have suggested that this may be at least partially explained by
the tendency to define restorative justice through its opposite retributive justice represented by
the current criminal justice system. There is, however, another possible explanation. Quite
simply, it is perceived by many that our current criminal justice system is not working19.
Increased incarceration rates have had an inverse result from that intended – crime rates increase
and recidivism is the norm not the exception. As Zehr suggested in his examination of
retributive and restorative justice ,we ought to begin with what we know. And what is it that we
know according to Zehr? “We know that the system we call “criminal justice” does not work.

17
www2.hull.ac.uk/fass/docs/law-inauguraljohnstone.doc
18
https://dalspace.library.dal.ca/.../Howse_Llewellyn%20Research%20Restorative%20Ju
19
www.vox.com/2016/3/1/11134908/criminal-justice-mental-health
…We have known that for many years, and have tried many reforms, and they have not worked
either.”119 What has been perceived as a crisis in the criminal justice system has prompted
people to look for solutions. It has lead to reform and in some cases the more revolutionary
move to question the very foundations of the current system – the move to restorative justice.
Unfortunately, this revolutionary “re-visioning” of justice has remained focused on criminal
justice. As a result restorative justice has come to be understood as an approach to criminal
justice instead of as a new lens through which one ought to view justice generally. Once one
understands, however, that restorative justice is concerned with the restoration of relationships, it
becomes impossible to justify limiting this approach only to those conflicts defined as criminal.
In fact, the focus of restorative justice on harm and not law-breaking reveals the arbitrary nature
of the distinction between public and private law in general. From a restorative perspective,
what matters is the harm that results not whether the act which caused the harm is classed as a
crime or not. Van Ness and Strong also question this distinction as viewed from a restorative
perspective. But as the underlying harmful action is basically the same in criminal and tort cases,
why are the two treated differently? The answer most often given is that while civil cases are
concerned with the violation of individual rights, criminal cases are concerned with broader
societal rights20; criminal cases should not be initiated by victims, since vindication of public
policy should not depend on an individual’s decision to institute legal proceedings.120However,
this common explanation makes it more difficult, not less, to justify the distinction given its
origin. As we saw in our overview of the historical roots of restorative justice ideas, the decision
to label some acts criminal was an eminently political one, driven by rulers’ desires for greater
political and economic power. It was for these reasons and not owing to some inherent
difference in their very nature that certain acts were designated criminal. Once designated as
such, these acts were treated differently. The replacement of the victim by the monarchy or state
as prosecutor gave tangible expression to this otherwise arbitrary distinction. The state stole the
victim’s own conflict obscuring further the fact that these conflicts, like “civil” conflicts, were
ones between individuals21.

20
https://books.google.co.in/books?isbn=1135633576
21
https://www.omicsonline.org/.../armed-conflict-violation-of-child-rights
 Challenges for Restorative Justice:

Is Restoration Possible Where One or More Parties is Absent?

An obvious question one must ask with respect to restorative justice is: what if one of the parties
won’t participate? This is where, we suggest, community plays its most important role in
restoration. While it is important to restore the particular relationship in which the wrong
occurred, sometimes this is not possible (immediately or ever). This does not mean, however,
that nothing can be done. It is important to remember that while it is the relationship between
the victim and the wrongdoer which is of primary importance, it is not the only relationship
damaged by the wrong. Both the victim and the wrongdoer are members of a community and
their relationship with the community was also damaged. Thus, the community can play a part
in helping to bring victim and perpetrator back into the community from which they were
isolated by the wrong. To be clear, then, the community can play two different roles in
restoration. It can play “go between” or mediator, in cases where the parties are not able or
ready to face one another. The community can also serve the interests of restoration to the extent
possible where one party refuses to participate. First, take the case where the parties are willing
to work towards restoration in some sense but are not willing to face one another. The
community could hold a process to discern with the victim her needs, and then with the
perpetrator to see what might be appropriate from their perspective. Then the community would
try and reflect with each party about the role and position of the other. This is not an ideal
situation as actual encounter is very important for restorative justice. The two parties directly
involved/affected by the wrongdoing need to meet one another face to face and learn to negotiate
with one another. This is a key part of restoration The community, then, should at every
opportunity attempt to bring the parties together. However, before the parties are able or willing
to come together, the community can do much to begin the process. It can work towards getting
each party to contemplate what their needs and contributions might be in restoring the
relationship. Further, the community can begin the work of restoring the parties’ relationships
with the community (remembering that the community has some responsibility for and was
harmed by the wrongdoing as well). The community can ask what the victim might need and
negotiate with the wrongdoer regarding how she might address the harm she has done to the
community.22 The situation where one party refuses to participate is similar to that considered
above where the parties cannot or will not meet one another. In both situations, the community
plays an important role in working towards restoration. In the case where one party refuses to
participate, the community could work towards restoration with the party who is willing. Often
the most difficult case is where the wrongdoer is willing and the victim is not (it is also the case

22
https://www.unodc.org/pdf/criminal_justice/06-56290_Ebook.pdf
where we perhaps have the most sympathy for a party’s reasons not to participate). It is
important to develop a response to this situation such that the prospects of restoration cannot be
high jacked by one party23. Thus, while it would be ideal for the victim to be a part of the
process, in the event that she refuses, representatives from the community, and even from the
immediate community/group of which the victim is/was a part, might function in the place of the
victim (e.g. group for victims of a particular crime, or a representative from the same
neighbourhood where a robbery took place, or a member of the victim’s religious, ethnic or
racial group when a wrong involves the victim as a member of one of these groups). We have
briefly addressed the option of victim-offender groups in our discussion of the role of community
in restorative processes.123 Victim-offender groups could serve a number of functions. One
might have a group of victims meet with a particular offender (and her community of support)
and attempt a restorative process involving these parties. Alternatively one might have groups of
offenders meet with groups of victims (these individuals being unconnected but for involvement
in the same kind of incident/conflict). Again this option is not ideal as it does not allow for
restoration between the individuals directly connected with one another. It does provide,
however, a chance for encounter with others from a different perspective. As such, it offers
some of the benefits of encounter – namely, it gives parties the chance to tell their story and relay
their experience in an context where they will be listened to with respect; it dispels stereotypes
each group had of one another. In effect, it serves to humanize the other and the conflict. The
other alternative in a situation where the victim refuses to participate is to have the wrongdoer
work to restore her relationship with the community while taking steps to try and open the door
to restoration with the particular victim24. Such restoration with the community might involve
the victim-wrongdoer groups mentioned above, or other processes in which the community is
given the opportunity to express the way in which it has suffered harm and wishes some redress
from the wrongdoer. Perhaps the easier case is where the wrongdoer is unwilling to participate in
the process. There are two scenarios which might be played out here depending on the structure
of which the restorative process is a part. This addresses a larger issue of whether restorative
justice ought to be an alternative to the already existing retributive and corrective systems in a
kind of dual system model, or whether it ought to replace the existing justice system. This is an
issue we will return to in our consideration of the appropriate agents of restorative justice. For
now it is safe to assume that initially restorative justice processes would have to operate in
tandem with the existing system as it would not be practical or desirable to abandon the current
system wholesale. Instead, change must be carefully planned and occur gradually25. Thus, it is
wise to consider the alternatives under both systems for the case where a victim refuses to
participate in a restorative process – namely, in a dual system where restorative justice co-exists
with the current justice system, and in a singular system where restorative justice processes
comprise the entire justice system.

23
www.academia.edu/27977513/Restorative_Justice_-_a_Conceptual_Framework
24
supremecourtofindia.nic.in/scr/2013/2013_v9_pi.pdf
25
ww.ranone.com/features/news.asp?ID=4110
 CURRENT PROGRAMS

Restorative justice has caught the attention of many reformers. In a short period of time
restorative justice has become a new catch phrase for alternatives to traditional legal practice.
Atthe outset of this project we identified the need for a conceptual framework in order to
distinguish between truly restorative practices and other practices that simply look different in
form from current ones. It will be clear by now that restorative justice not only looks different
from the traditional adversarial system (a courtroom with two lawyers and a judge), it is rooted
in a fundamentally different understanding of justice - an understanding of justice as the
restoration of relationships of social equality. However, the label restorative justice continues to
be liberally applied to alternative practices seeking legitimacy26. If the cause of restorative
justice is to be advanced, it is important to be clear about what qualifies as restorative justice and
what does not, to distinguish restorative justice as something more than alternative practice. The
work of evaluating practices which hold themselves out to be restorative in nature must be
undertaken on a case by case basis, requiring careful attention to the structure of the practice and
the context in which it operates. Further, such evaluation must be ongoing for as contexts
change so too must practices aimed at restoration. Evaluation of existing programmes holding
themselves out as restorative is beyond the scope of our current project 27. It is important before
moving on, however, to offer some sense of how such evaluation might be carried out – to
understand how restorative justice might differ from the many alternatives to traditional legal
practice. To this end a brief examination of the relationship between restorative justice and
alternative dispute resolution (ADR) might prove instructive. Our aim here is not to offer a
comprehensive description or examination of ADR or to pass judgement on the effectiveness or
utility of such initiatives. Rather, we are only interested in the relationship between restorative
justice and ADR – that is with the extent to which ADR might be viewed as restorative justice28.
ADR is an obvious candidate for our investigations as it is understood to refer to all practices
outside the traditional legal processes. Restorative justice is often mistaken to refer to these
same practices. Understanding the ways in which ADR reflects restorative values, and how it
fails to meet the demands of restorative justice will provide much guidance for the evaluation of
other practices.

26
bruinsua.weebly.com/blog/the-sociological-imagination-restorative-justice
27
https://dalspace.library.dal.ca/.../Howse_Llewellyn%20Research%20Restorative
28
www.academia.edu/.../Restorative_Justice_and_ADR_An_Analytical_Discourse_for
 Restorative justice within a dual system

The reality that restorative justice practices will (at least initially) exist within or along side the
current judicial system warrants some consideration of this relationship. Zehr has suggested that
such an arrangement, particularly with regard to the criminal justice system, ought to be the
cause of some concern and caution on the part of advocates of restorative justice. Specifically,
he offers three reasons why restorative justice projects might not achieve their objectives if run
in conjunction with the existing criminal justice system. In looking forward to the
implementation of a restorative vision of justice, we would do well to bear such cautions in mind
with a vie. Zehr’s cautions are directed specifically at the criminal justice system. However, we
have already suggested that in many ways the concerns raised with respect to the criminal justice
system are generally appropriate to the rest of the existing justice system. This is particularly so
regarding concerns with the retributive nature of the criminal justice system, as the rest of the
justice system shares these retributive characteristics whether it be through punitive awards in
civil cases or simply the adversarial nature of the system as a whole. Zehr contends, then, that
attempting restorative justice from within the existing system could prove dangerous to the goal
of restoration owing to these factors:

1) the criminal justice system is by nature retributive and not restorative

2) the criminal system is oriented to offenders and not victims
3) when challenged, the instinct of the criminal system is towards self-preservation150

Developing Restorative Processes Perhaps the most important point that must be made with
respect to who ought to be agents of these processes is that the development and operation of
restorative processes must be consistent with the principles of restorative justice. Thus, in
looking forward to the development of restorative processes attention must be paid to who is
involved in and responsible for such development. Just as restorative processes themselves
ought to involve all those with a stake in the matter, so too should these individuals and groups
be involved in the development of restorative justice processes29. This demands that
perpetrators, victims/victims groups, representatives of the various communities, government
officials, etc. not simply be involved in the processes, but in the development and design of these
processes as well. That processes and projects aimed at restorative justice be developed in ways
which reflect the underlying values of restorative justice (participation, encounter, etc.), is key
both to their success and to the overall project of restoration. Developing restorative justice

29
www98.griffith.edu.au/dspace/bitstream/handle/10072/1051/?sequence=1
initiatives in a restorative way actually works towards restoration30. Further, including the
different parties in the process is necessary for the success of restorative processes. It means that
parties will be committed to the process because they had some part in its design. Restorative
processes cannot simply be foisted upon people and be expected to work. Parties need to gain an
understanding of the aims and demands of restoration and have some say in what is required to
achieve it in their context. Enabling participation in the development and operating of
processes and programs will require a broad commitment to education. It is not enough simply
to make room for involvement in restorative justice initiatives. Individuals must be equipped for
participation. Existing and learning in a society so centrally focused on retribution and
adversarial methods of conflict resolution, there is little opportunity for individuals to gain a
different perspective on conflict or its resolution. The success of restorative justice programs
and processes depends on the participants’ commitment to restoration, and their willingness to
work towards that goal. This commitment can only develop as a result of education and
dialogue. Finally, it is important to acknowledge the dynamic nature of restorative justice
processes. Owing to the contextual nature of restorative justice programs, the processes must be
subject to ongoing evaluation and constantly open to change and challenge.160 This is another
reason why general education and equipping of citizens are required in any effort aimed at
restorative justice. Working towards restorative justice must be an ongoing process open to all.

CONCLUSION: The Road to Restorative Justice – Getting from Here to

There

It will be obvious from our elaboration of a conceptual framework for restorative justice that
realizing the full aspirations of this ideal entails enormous issues of institutional reconstruction
and redesign. In this conclusion, we can do little more than articulate what we consider the
research, and policy development, agenda that flows most immediately from the possibilities
opened up by the restorative idea.

First of all, as we have discussed, any transition towards restorative justice will involve a
complex interaction with existing processes, institutions and roles. At the level of detail, the
range of institutional practices to be rethought is formidable—in the criminal context, the entry
point for restoration can arguably begin as early as preventative policing, extending through
prosecutorial discretion, to sentencing (where, all too often, alternative approaches have been

30
www.iirp.edu/pdf/mn02_wong.pdf
taken as beginning). The challenge of weaving restoration into the various existing justice
contexts (criminal, family, commercial etc.) needs to be addressed in a context-by-context basis.
In the criminal area, where rights of the accused have been extensively constitutionalized in a
manner that assumes important features of the present system, research must be undertaken on
how this legacy may affect restorative possibilities, and how Charter issues may have to be
rethought where the co-existence of restorative and conventional approaches is contemplated.

Secondly, any move towards a restorative approach should presuppose a careful examination the
issue of cross-cultural understandings of justice. The conceptual framework supposes the
possibility of cross-cultural dialogue and understanding about justice, and therefore rejects a
cultural relativist or determinist view. But supposing the possibility of such dialogue does not,
of course, obviate the need to undertake it. By necessity restoration must respond to the moral
intuitions of both wrongdoers and sufferers of wrong, however broadly defined. A restorative
approach will clearly not work unless there is a policy development process that at least could
begin with a broadly based consultation and dialogue with Canadians in all their diversity, asking
hard questions about why, for example, so many of us viscerally reach for punishment as a
“solution”—a dialogue where voices of wrongdoers and sufferers of wrongs must be present and
in interaction. Finally, we must not lose sight of the connection between the challenge of
restorative justice and distribution of resources more generally in society, equality of
opportunity, and to some extent equality of social outcomes. It must be more fully appreciated
and documented just how much of the current, and threatened, social safety net is connected to
the opportunities for restoration. There is an interconnection between the decision on the one
hand to spend more money on prisons and “boot camps” and to reduce social assistance, publicly
funded educational opportunities, and access to crisis shelters.